2. Arrests by officers without warrant may be executed. 1. By a justice of the peace; who may himself apprehend or cause to be apprehended, by word only, any person committing a felony or breach of the peace in his presence. (1) 2. The sheriff; (7) and 3. The coroner, may apprehend any felon within the county without warrant. 4. The constable, of whose office we formerly spoke, (m) hath great original and inherent authority with regard to arrests. He may, without warrant, arrest any one for a breach of the peace, committed in his view, and carry him before a justice of the peace. And, in case of felony actually committed, or a dangerous wounding, whereby felony is like to ensue, he may upon probable suspicion arrest the felon; (8) and for that purpose is authorized (as upon a justice's warrant) to break open doors, and even to kill the felon if he cannot otherwise be taken; and, if he or his assistants be killed in attempting such arrests, it is murder in all concerned. (n) 5. Watchmen, either those appointed by the statute of Winchester, 13 Edw. I, c. 4, to keep watch and ward in all towns from sun-setting to sun-rising, or such as are mere assistants to the constable, may virtute officii arrest all offenders, and particularly night-walkers, and commit them to custody till the morning. (0)

3. Any private person (and a fortiori a peace officer) that is present when any felony is committed, is bound by the law to arrest the felon, on pain of [*293] fine and imprisonment, if he escapes through the negligence of the standers-by. (p) And they may justify breaking open the doors upon following such felon; and if they kill him, provided he cannot be otherwise taken, it is justifiable; though if they are killed in endeavouring to make such arrest, it is murder. (g) Upon probable suspicion also a private person may arrest the felon, or other person so suspected. (r) (9) But he cannot justify breaking open doors to do it; and if either party kill the other in the attempt, it is manslaughter, and no more. ($) It is no more, because there is no malicious design to kill:

() 1 Hal. P. C. 86.
(p) 2 Hawk. P. C. 74.

(m) See book I. page 355.
(g) 2 Hal. P. C. 77.

(n) 2 Hal. P. C. 88, 89. (r) Stat. 30 Geo. II, c. 24.

(0) Ibid. 98. (8) 2 Hal. P. C. 82, 83.

into the united kingdom. The offences covered by these acts are murder, or assault with intent to commit murder, piracy, arson, robbery, and forgery. Similar laws have been passed in France and the United States for the return of the like offenders escaping to those countries from the united kingdom. See the act of congress, 9 Stat. at Large, 302.

(7) [And the sheriff may arrest, though the party be merely suspected of a capital offence, 2 Hale, 87; and if the sheriff be assaulted in the execution of his office, he may arrest the offender. 1 Saund. 77; 1 Taunt. 146.]

(S) [A constable may justify an imprisonment. without warrant, on a reasonable charge of felony made to him, although he afterwards discharges the prisoner without taking him before a magistrate, and although it turn out that no felony was committed by any one: Holt. N. P. 418; Cald. 291; and the charge need not specify all the particulars necessary to constitute the offence. R. and R. C. C. 329. In general, however, a constable cannot, without an express charge or warrant, justify the arrest of a supposed offender, upon suspicion of his guilt, unless some actual felony has been committed, and there is reasonable cause for the sus picion that the party imprisoned is guilty: 4 Esp. Rep. 80; Holt, C. N. P. 478; Hawk. b. 2, c. 12, s. 16; 2 Hale, 92, 89, n. f.; Cald. 291; and a constable is not justified in apprehending and imprisoning a person on suspicion of having received stolen goods, on the mere assertion of one of the principal felons. 2 Stark. 167. There are, however, authorities in favor of an exception to this rule in the case of night-walkers, and persons reasonably suspected of felony in the night. 3 Taunt. 14; 1 East, P. Č. 303; Hawk. b. 2, c. 12, s. 20; 2 Hale, 89; 5 Edw. III, c. 14; 2 Inst. 52: Bac. Ab. tit. Constable, G.]

() [Where a felony has been actually committed, a private person acting with good intention, and upon such information as amounts to a reasonable and probable ground of suspicion, is justified in apprehending without a warrant the suspected person in order to carry him before a magistrate. Cald. 291; 4 Taunt. 34, 35; Price, 525. But where a private person had delivered another into the custody of a constable, upon a suspicion which appeared afterward to be unfounded, it was held that the person so arrested might maintain an action of trespass for an assault and false imprisonment against such private person, although a felony had been actually committed. 6 T. R. 315.

With respect to interference, and arrests in order to prevent the commission of a crime, any person may lawfully lay hold of a lunatic about to commit any mischief, which, if committed by a sane person, would constitute a criminal offence; or any other person whom he shall see on the point of committing a treason or felony, or doing any act which will manifestly en

but it amounts to so much, because it would be of most pernicious consequence, if, under pretence of suspecting felony, any private person might break open a house, or kill another; and also because such arrest upon suspicion is barely permitted by the law, and not enjoined, as in the case of those who are present when a felony is committed.

4. There is yet another species of arrest, wherein both officers and private men are concerned, and that is upon an hue and cry raised upon a felony committed. An hue (from huer, to shout, and cry), hutesiun et clamor, is the old common-law process of pursuing, with horn and with voice, all felons, and such as have dangerously wounded another.(t) It is also mentioned by statute Westm. 1, 3 Edw. I, c. 9, and 4 Edw. I, de officio coronatoris. But the principal statute, relative to this matter, is that of Winchester, 13 Edw. I, cc. 1 and 4, which directs that from thenceforth every county shall be so well kept, that immediately upon robberies and felonies committed, fresh suit shall be made from town to town, and from county to county; and that hue and cry shall be raised upon the felons, and they that keep the town shall follow with hue and cry with all the town, and the towns near; and so hue and cry shall be made from town to town, until they be taken and delivered to the sheriff. And that such hue and cry may more effectually be made, the *hundred is bound by the same statute, chapter 3, to answer for all robberies therein committed, unless [294] they take the felon; which is the foundation of an action against the hundred, (u) in case of any loss by robbery. By statute 27 Eliz. c. 13, no hue and cry is sufficient, unless made with both horsemen and footmen. And by statute 8 Geo. II, c. 16, the constable or like officer, refusing or neglecting to make hue and cry, forfeits 5.: and the vill or district is still in strictness liable to be amerced, according to the law of Alfred, if any felony be committed therein, and the felon escapes. (10.) An institution which hath long prevailed in many of the eastern countries, and hath in part been introduced even into the Mogul empire, about the beginning of the last century: which is said to have effectually delivered that vast territory from the piague of robbers, by making in some places the villages, in others the officers of justice, responsible for all the robberies committed within their respective districts. (w) Hue and cry (2) may be raised either by precept of a justice of the peace, or by a peace officer, or by any private man that knows of a felony. The party raising it must acquaint the constable of the vill with all the circumstances which he knows of the felony, and the person of the felon; and thereupon the constable is to search his own town, and raise all the neighbouring vills, and make pursuit with horse and foot; and in the prosecution of such hue and cry the constable and his attendants have the same powers, protection and indemnification, as if acting under a warrant of a justice of the peace. But if a man wantonly or maliciously raises an hue and cry, without cause, he shall be severely punished as a disturber of the public peace. (y)

In order to encourage farther the apprehending of certain felons, rewards and immunities are bestowed on such as bring them to justice, by divers acts of par

(u) See book III, page 161. (x) 2 Hal. P. C. 100-101.

(t) Bracton, l. 3. tr. 2 c. 1, § 1. Mirr. c. 2 § 6. (w) Mod. Un. Hist. vi, 383 vii, 156.

(y) 1 Hawk. P. C. 75.

danger the life or person of another, and may detain him until it may be reasonably presumed that he has changed his purpose; but where he interferes to prevent others from fighting, he should first notify his intention to prevent the breach of the peace. Hawk. b. 2 c. 12, s. 19; 1 Hale, 589; 2 Roll. A. B. 559, E. pl. 3. n. 8; Selw. 3d ed. 830; Com. Dig. Pleader, 3 M. 22; Bac. Abr. Trespass, D. 3; 1 East, P. C. 304. Thus, any one may justify breaking and entering a party's house and imprisoning him, to prevent him from murdering his wife, who cries out for assistance. 2 B. and P. 260; Selw. 3d ed. 830; Bac. Abr. Trespass, D. 3. And the riding in a body to quell a riot is lawful, and no information will be granted for small irregularities in the pursuit of such a design. 1 Bla. Rep. 47; 1 B. and P. 264, n. a. ; 1 East, P. C. 304. If a man be found attempting to commit a felony, in the night, any one may apprehend and detain him tiil he be carried before a magistrate. 1 R. and M. C. C. 93.

(10) All these acts are now repealed.

liament. The statute 4 and 5 W. and M. c. 8, enacts, that such as apprehend a highwayman, and prosecute him to conviction, shall receive a reward of 407. [*295]] from the public; to be paid to them (or if *killed in the endeavour to take him, their executors) by the sheriff of the county; besides the horse, furniture, arms, money, and other goods taken upon the person of such robber; with a reservation of the right of any person from whom the same may have been stolen: to which the statute 8 Geo. II, c. 16, superadds 107. to be paid by the hundred indemnified by such taking. By statutes 6 and 7 Wm. III, c. 17, and 15 Geo. II, c. 28, persons apprehending and convicting any offender against those statutes, respecting the coinage, shall (in case the offence be treason or felony) receive a reward of forty pounds; or ten pounds, if it only amount to counterfeiting the copper coin. By statute 10 and 11 Wm. III, c. 23 any person apprehending and prosecuting to conviction a felon guilty of burg lary, house-breaking, horse-stealing, or private larceny to the value of 5s. from any shop, warehouse, coach-house, or stable, shall be excused from all parish offices. And by statute 5 Ann. c. 31, any person so apprehending and prosecut ng a burglar, or felonious house-breaker (or, if killed in the attempt, his executors), shall be entitled to a reward of 407. (z) By statute 6 Geo. I, c. 23, persons discovering, apprehending, and prosecuting to conviction, any person taking reward for helping others to their stolen goods, shall be entitled to forty pounds. By statute 14, Geo. II, c. 6, explained by 15 Geo. II, c. 34, any person apprehending and prosecuting to conviction such as steal, or kill with an intent to steal, any sheep, or other cattle specified in the latter of the said acts, shall for every such conviction receive a reward of ten pounds. Lastly, by statute 16, Geo. II, c. 15, and 8 Geo. III, c. 15, persons discovering, apprehending, and convicting felons and others being found at large during the term for which they are ordered to be transported, shall receive a reward of twenty pounds. (11)

CHAPTER XXII.

OF COMMITMENT AND BAIL.

WHEN a delinquent is arrested by any of the means mentioned in the preceding chapter, he ought regularly to be carried before a justice of the peace: (1) and how he is there to be treated, I shall next show, under the second head, of commitment and bail.

The Justice before whom such prisoner is brought is bound immediately to examine the circumstances of the crime alleged: (2) and to this end by statute

(z) The statutes 4 and 5 W. and M. c. 8. 6 and 7 Wm. III, c. 17, and 5 Ann c. 31 (together with 3 Geo. I. c. 15. § 4, which directs the method of reimbursing the sheriffs), are extended to the county palatine of Durham, by stat. 14 Geo. III, c. 46.

(11) These statutes are repealed and new provisions substituted.

(1) [In a case where it was stated the party behaved improperly in a church, it was held that though a constable might be justified in removing him from the church, and detaining him till the service was over, yet he could not legally detain him afterwards to take him before a magistrate. 2 B. and C. 699.

A watchman should deliver the supposed offender over to a constable, or take him before a magistrate. Dalt. J. c. 104.

A private person may do the same as a watchman. It has been held that a private person, when he took a party endeavouring to commit a felony, might detain him, in order to take him before a magistrate. 1 R. and M. C. C. 93.]

(2) [A constable, arresting a man on suspicion of felony, is bound to take him before a mag. istrate as soon as he reasonably can; and he has no right to detain a prisoner three days without taking him before a magistrate, in order that evidence may be collected in support

2 and 3 P. and M. c. 10, he is to take in writing the examination of such prisoner, and the information of those who bring him: (3) which, Mr. Lambard observes, (a) was the first warrant given for the examination of a felon in the English law. For, at the common law, nemo tenebatur prodere seipsum: and his fault was not to be wrung out of himself, but rather to be discovered by other means and other men. (4) If upon this inquiry it manifestly appears that either no such. crime was committed, or that the suspicion entertained of the prisoner was wholly groundless, in such cases only it is lawful totally to discharge him. Otherwise he mast either be committed to prison, or give bail: that is put in securities for his appearance, to answer the charge against him. (5) This commitment, therefore, being only for safe custody, wherever bail will answer the same intention, it ought to be taken; as in most of the inferior crimes but in felonies, and other offences of a *capital nature, no bail can be a security equivalent to the actual custody of the person. For what is there that [297] a man may not be induced to forfeit, to save his own life? and what satisfaction or indemnity is it to the public, to seize the effects of them who have bailed a mur

(a) Eirenarch, b. 2, c. 7. See page 357.

of a felony with which he is charged. Wright v. Court, 6 D. and R. 623. And see 2 Haw. P. C. 117.

It is the duty of the magistrate to take and complete the examination of all concerned, and to discharge or commit the individual suspected as soon as the nature of the case will admit. Fost. 142, 143.]

(3) [The prisoner's examination must not be upon oath that of the witnesses must be. 2 Hale, P. C. 52; 1 id. 585; 1 Phil. Ev. 106. Where magistrates first took the examination of witnesses, not on oath, in support of a conviction, and afterwards swore them to the truth of their evidence, the courts of king's bench expressed their disapprobation of the practice. Rex v. Kiddy, 4 D. and R. 734.]

(4) The statute 2 and 3 P. and M. c. 10, is repealed. By statute 11 and 12 Vic. c. 42, s. 17, when a person appears or is brought before a justice or justices charged with an indictable offence, the justice or one of the justices shall read or cause to be read to the accused the depositions taken against him, and shall say to him these words or words of the like effect: Having heard the evidence, do you wish to say any thing in answer to the charge? You are not obliged to say any thing unless you desire to do so, but whatever you say will be aken down in writing, and may be given in evidence against you on your trial;" and whatever the prisoner shall then say in answer thereto shall be taken down in writing and read over to him, and shall be signed by the said justice or justices, and kept with the depositions of the witnesses, and shall be transmitted with them as hereinafter mentioned; and afterwards, pon the trial of said accused person, the same may, if necessary, be given in evidence against tun without further proof thereof, unless it shall be proved that the justice or justices purvorting to sign the same did not in fact sign the same; provided always that the said justice justices, before such accused person shall make any statement, shall state to him and give Je clearly to understand that he has nothing to hope from any promise of favor and nothing o fear from any threat which may have been holden out to him to induce him to make any admission or confession of his guilt, but that whatever he shall then say may be given in evidence against him on the trial, notwithstanding such promise or threat; provided, nevertheless, that nothing herein enacted or contained shall prevent the prosecutor in any case from giving in evidence any admission or confession or other statement of the person accused or charged, made at any time, which by law would be admissible as evidence against such person." Some further provisions are made by statute 30 and 31 Vic. c. 35.

The statement of one defendant is not evidence against another arrested on the same charge. Reg. v. Swinnerton, 1 C. and M. 593. It must not be taken on oath, or it will be inadmissible. Rex v. Smith, 1 Stark. N. P. 242; R. v. Rivers, 7 C. and P. 177; R. v. Pikesley, 9 id. 124.

(5) [Besides this commitment and bail, the magistrate should take the recognizance of the prosecutor to appear and prefer an indictment and give evidence at the next sessions of the peace, or general gaol delivery, as the case may require, and in case of refusal may commit him to gaol. 1 Hale, 586; 2 id. 52, 121; 3 M. and S. 1.

When it appears nat a person brought before the magistrate as a witness, may probably be able to give material evidence against the prisoner. he has, in the cases of manslaughter and felony, by statute, authority to bind such witness by recognizance or obligation to appear at the next general gaol delivery, to give evidence against the party indicted; and infants and married women, who cannot legally bind themselves, must procure others to be bound for them. And if the witness refuse to give such recognizance, the magistrate has power to commit him, this being virtually included in his commission, and by necessary consequence upon the above men. tioned statutes. 3. M. and S. 1; 1 Hale, 586.]

VOL. II--81

481

derer, if the murderer himself be suffered to escape with impunity? Upon principle similar to which the Athenian magistrates, when they took a solemn oath never to keep a citizen in bonds that could give three sureties of the same quality with himself, did it with an exception to such as had embezzled the public money, or been guilty of treasonable practices. (b) What the nature of bail is hath been shown in the preceding book, (c) viz., a delivery of bailment, of a person to his sureties, upon their giving (together with himself) sufficient security for his appearance: he. being supposed to continue in their friendly custody, instead of going to gaol. In civil cases we have seen that every defendant is bailable; but in criminal matters it is otherwise. Let us therefore enquire in what cases the party accused ought, or ought not, to be admitted to bail.

And, first, to refuse or delay to bail any person bailable is an offence against the liberty of the subject, in any magistrate by the common law (d) as well as by the statute Westm. 1, 3 Edw. 1, c. 15, and the habeas corpus act, 31 Car. II, c. 2. And, lest the intention of the law should be frustrated by the justices requiring bail to a greater amount than the nature of the case demands, it is expressly declared by statute I W. and M., st. 2, c. 1, that excessive bail ought not to be required; though what bail should be called excessive must be left to the courts, on considering the circumstances of the case, to determine. And, on the other hand, if the magistrate takes insufficient bail he is liable to be fined, if the criminal doth not appear. (e) (6) Bail may be taken either in court, or in some particular cases by the sheriff, coroner, or other magistrate, (7) but most usually by the justices of the peace. Regularly, in all offences either against the common law or act of parliament, that are below felony, [ *298] the offender ought to be admitted to bail, unless it be prohibited by some special act of parliament. (f) In order, therefore, more precisely to ascertain what offences are bailable,

Let us next see, who may not be admitted to bail, or what offences are not bailable. And here I shall not consider any one of those cases in which bail is ousted by statute, from prisoners convicted of particular offences: for then such imprisonment without bail is part of their sentence and punishment. But, where the imprisonment is only for safe custody before the conviction, and not for punishment afterwards, in such cases bail is ousted or taken away, wherever the offence is of a very enormous nature; for then the public is entitled to demand nothing less than the highest security that can be given, viz., the body of the accused; in order to insure that justice shall be done upon him if guilty. Such persons, therefore, as the author of the Mirror observes, (g) have no other sureties but the four walls of the prison. By the ancient common law, before (h) and since (i) the conquest, all felonies were bailable, till murder was excepted by statute: so that persons might be admitted to bail before conviction almost in every case. But the statute Westm. I, 3 Edw. 1, c. 15, takes away the power of bailing in treason, and in divers instances of felony. The statutes 23 Hen. VI, c. 9, and 1 and 2 P. and M. c. 13, give further regulations in this matter; (8) and upon the whole we may collect, (k) that no justice of the peace

(g) C. 2, § 24.

(d) 2 Hawk. P. C 90. (h) 2 Inst. 189.

In omnibus placitis de felonia solet accusatus per plegios dimitti, præter quam in placito de homicidio, ubi ad terrorem aliter statutum est. (Glany. 1. 14. č. 1.) (k) 2 Inst. 186. 2 Hal. P. C. 129.

(6) [And even if the criminal does appear, yet, if the bail were taken corruptly, the magis trate would continue liable to an information or indictment. 2 T. R. 190.]

(7) The court of king's bench, or any judge thereof, in vacation, may at their discretion admit persons to bail in all cases whatsoever see 3 East, 163; 5 T. R. 169; but none can claim this benefit de jure. 2 Hale, 129. As to when this court will bail, see 1 Chit. C. L. 2 ed. 98.]

(*) These statutes are since repealed, and much more liberal authority is conferred upon justices to admit to bail.

In the United States it is provided by the national and state constitutions that unreasonaois bail shall not be required. But what is reasonable is necessarily left to the discretion of the